2017Da239984 Wages

Plaintiff 1 and four others

Attorney Kim Young-deok, Counsel for the plaintiff-appellant

Young Passenger Transport Corporation

Law Firm Samong, Attorney Sam-chul

[Defendant-Appellant]

Seoul Northern District Court Decision 2015Na30648 Decided May 23, 2017

November 26, 2020

Of the part of the lower judgment against the Plaintiffs, the part regarding the Plaintiffs’ claim for unpaid overtime allowance, the part regarding the Plaintiffs’ claim for unpaid retirement allowance, Plaintiffs 2, 3, 4, and 5 is reversed, and that part of the case is remanded to the Seoul Northern District Court.

All remaining appeals by the plaintiffs are dismissed.

The grounds of appeal are examined.

1. Whether bonuses constitute ordinary wages;

The lower court determined that bonuses that the Defendant did not pay to retired workers during the period of payment assessment under a collective agreement do not constitute ordinary wages.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower judgment did not err by misapprehending the legal doctrine regarding ordinary wages.

2. Validity of an agreement to offset working hours per month;

A. Articles 56, 50(1), and 50(2) of the Labor Standards Act provide that overtime allowance shall be paid for overtime work exceeding 40 hours per week, and 50/100 of the ordinary wage for 8 hours per day (Article 56 of the Labor Standards Act was amended by Act No. 15513, Mar. 20, 2018; however, the part concerning overtime allowance was not different before and after the amendment). Article 15 of the Labor Standards Act provides that a labor contract that prescribes working conditions that do not meet the standard prescribed under the Labor Standards Act is null and void only for that part, and that part which is null and void is in accordance with the standard prescribed under the Labor Standards Act.

The provision of the Labor Standards Act that stipulates that overtime work shall be paid in addition to 50% or more of ordinary wages, provides the minimum standard for calculating wages for overtime work. Thus, in cases where the labor and management agree on the calculation method of additional wage for overtime work, if the amount calculated according to the labor and management agreement does not reach the standard prescribed in the Labor Standards Act, the labor-management agreement is null and void, and the invalidated portion shall comply with the standard prescribed in the Labor Standards Act (see Supreme Court en banc Decision 2012Da89399, Dec. 18, 2013)

B. According to the reasoning of the lower judgment and the record, the following facts are revealed.

(1) From August 2009 to September 2012, the Defendant paid wages to drivers under its jurisdiction, including the Plaintiffs, in accordance with the collective agreement and wage agreements concluded between the bus transport business association in Seoul Special Metropolitan City and the National Bus Union in Seoul Special Metropolitan City (hereinafter “instant collective agreement, etc.”).

(2) Under the instant collective agreement, etc., which applies to the Plaintiffs, the system of driving workers was based on the two-day system per day and 40-hour work per week (hereinafter referred to as “day of weekly work”), and the overtime work day, which consists of shooting week, was set to have five hours of overtime work.

(3) In the instant collective agreement, the day of weekly work is nine hours including 8 hours for contractual work and 1 hours for overtime work, and the day of overtime work is five hours for overtime work (hereinafter “instant guarantee hours”). Meanwhile, in the instant wage agreement, the hours of weekly work are set off on a monthly basis, not on a daily basis, but on a monthly basis. In the instant collective agreement, the said collective agreement stipulates that the hours of overtime work are less than 5 hours or more than 5 hours for overtime work (hereinafter “agreement on the calculation method of weekly work hours”).

However, even if the actual working hours per month do not reach the above guarantee hours, the Defendant paid the Plaintiffs overtime allowance for one-hours of working day (150% of the regular wage), and the overtime work allowance for five-hours of working day (150% of the regular wage). In addition, the Defendant considered two-hours of working day and three-hour night work hours for working day, and paid night work allowances (150% of the regular wage) accordingly. This fact is examined in light of the legal principles as seen earlier.

(1) The instant monthly set-off agreement refers to the following agreements that determine overtime hours between labor and management on a monthly basis, taking into account the form of work or the characteristics of the working environment. ① A certain number of hours based on the instant guarantee hours regardless of actual working hours (one hour per day and five hours per day in case of weekly working days, and five hours per day in case of overtime work days) shall be deemed overtime hours: Provided, That even if actual overtime hours by working day exceed those deemed as above, the excess working hours are not immediately recognized as additional overtime hours, and where an employee worked overtime in excess of the aggregate of the instant guarantee hours, the excess working hours are recognized as additional overtime hours other than the extension hours deemed as above.

According to the above agreement, an employee may be granted additional overtime hours by proving that he/she worked in excess of the monthly total of the guaranteed hours of this case, and it is not readily concluded that the said agreement is null and void solely on the basis that he/she agreed to settle the wage calculation hours according to actual working hours.

(2) However, the monthly set-off agreement of this case takes the method of calculating additional overtime work hours in comparison with the monthly total of the instant guarantee hours calculated based on the number of working days calculated by adding the actual working hours per month to the monthly unit. The subject of such calculation is the subject of wage calculation.

If the calculation of the total working hours by simply comparing the working hours without distinguishing whether the working hours are contractual work hours or overtime work hours, and if there occurs any part offset with the prescribed working hours in actual overtime work hours, only the amount equivalent to the ordinary wage shall be calculated as wages. As such, the amount equivalent to 50/100 or more of the ordinary wage is below the standard prescribed in Article 56(1) of the Labor Standards Act. In the instant collective agreement, etc., it can be deemed that the worker was treated favorably compared to the standard prescribed in the Labor Standards Act in relation to night work hours, and even in the month in which the actual working hours per month do not fall short of the total working hours per month of the instant guarantee hours calculated according to the number of working days, it does not affect the conclusion that the monthly offset agreement on overtime allowances of this case is in violation of the Labor Standards Act.

(3) Ultimately, in a case where the amount of overtime allowance calculated pursuant to the monthly offset agreement of this case falls short of the amount calculated pursuant to the Labor Standards Act, the said offset agreement is deemed null and void as it violates the Labor Standards Act.

D. Nevertheless, the lower court did not examine whether the monthly offset agreement of this case is null and void in detail on the grounds that, without examining the monthly basis, the purpose of the monthly offset agreement of this case is likely to be undermined if the monthly offset agreement of this case becomes null and void by separating only the monthly offset agreement of this case. In so doing, the lower court erred by misapprehending the legal doctrine on the method of calculating overtime allowances under the Labor Standards Act and Article 15 of the Labor Standards Act, thereby failing to exhaust all necessary deliberations. The allegation in the grounds of appeal pointing this out is justifiable. Meanwhile, the lower court applied the monthly offset agreement of this case by comparing the actual working hours calculated by dividing the weekly working days and the monthly working days according to the number of days during which the weekly work days were to be worked. However, in the case of the weekly work days, the wage agreement of this case is prescribed in the wage agreement of this case, and as in the case of the extended work days, the monthly offset agreement of this case is separately prescribed in the collective agreement of this case, and thus, there is room to interpret this as to this.

3. Scope of reversal

Of the part of the lower judgment against the Plaintiffs, there exist grounds for reversal as seen earlier regarding the part of the Plaintiffs’ claim for unpaid overtime allowance. On the other hand, in cases where the scope of acceptance of the claim for unpaid overtime allowance varies in view of the purport of reversal after remanding, the scope of acceptance of the claim for unpaid retirement allowance by Plaintiffs 2, 3, 4, and 5, which are the average wage, may vary. Therefore, the part of the claim for unpaid retirement allowance among the part against the said Plaintiffs should be reversed because it is necessary to

4. Conclusion

Of the part of the lower judgment against the Plaintiffs, the part regarding the Plaintiffs’ claim for unpaid overtime allowance, the part regarding the Plaintiffs’ claim for retirement allowance not paid by Plaintiffs 2, 3, 4, and 5 is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The remaining appeals by the Plaintiffs are all dismissed. It is so decided as per Disposition by the assent

The presiding Justice shall mobilization by the presiding Justice

Justices Kim Jae-sik in charge

Justices Min Min-young

Justices Noh Tae-ok